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[2010] ZAGPPHC 194
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Democratic Alliance v President of the Republic of South Africa and Others (59628/2009) [2010] ZAGPPHC 194 (10 November 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No. 59628/2009
DATE:
10/11/2010
ln
the matter between:
DEMOCRATIC
ALLIANCE
............................................................................
Applicant
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
.........................
First
Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
............................................................................................
Second
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
.
......................
Third
Respondent
MENZI
SIMELANE
.........................................................................................
Fourth
Respondent
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
In this application the Applicant, the Democratic Alliance
("the
DA"),
seeks
an order -
(a)
declaring
the decision of the First Respondent, the President of the Republic
of South Africa
{"the
President'),
taken
on or about 25 November 2009 to appoint the Fourth Respondent, Adv
Menzi Simelane
("Mr
Simelane"),
as
the National Director of Public Prosecutions ("
the
NDPP
")
to
be incons istent with the provisions of section 179 of the
Constitution, read with sections 9 and 10 of the National Prosecution
Authority Act, 1998 (Act 32 of 1998)
('the
NPA Act)")
and,
therefore, to be invalid;
(b)
reviewing
and setting aside such appointment;
(c)
ordering
that the costs of the application be paid by the President and any of
the other Respondents who oppose this application.
[2]
In terms of section 179 of the Constitution -
(a)
there
is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and consisting of,
inter
alia,
a
National Director of Public Prosecutions, who is the head of the
prosecuting authority, and who is appointed by the President,
as head
of the national executive
(subsection
(b)
national
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice
(subsections
(3) and (4));
(c)
the Cabinet member responsible for the administration of justice must
exercise final responsibility over the prosecuting authority
(subsection
(6)).
[3]
In terms of the NPA Act, being the national legislation envisaged in
section 179 of the Constitution -
(a)
any
person to be appointed as,
inter
alia,
NDPP
must -
(i)
possess
legal qualifications that would entitle him or her to practise in all
courts in the Republic
(section
9(1)(a));
(ii)
be
a fit and proper person, with due regard to his or her experience,
conscientiousness and integrity, to be entrusted with the
responsibilities of the office concerned
(section
9(1)(b))
("the
fitness requirement');
and
(iii)
be
a South African citizen
(section
9(2));
(b)
a
member of the prosecuting authority shall serve impartially and
exercise, carry out or perform his or her powers, duties and
functions in good faith and without fear, favour or prejudice and
subject only to the Constitution and the law
(section
32(1)(a));
(c)
no
organ of state and no member or employee of an organ of state nor any
other person shall improperly interfere with, hinder or
obstruct the
prosecuting authority or any member thereof in the exercise, carrying
out or performance of its, his or her powers,
duties and functions
(section
32(1)(b)),
(d)
the
Minister shall, for purposes of section 179 of the Constitution, the
NPA Act or any other law concerning the prosecuting authority,
exercise final responsibility over the prosecuting authority in
accordance with the provisions of NPA Act
(section
33(1)),
(e)
the
NDPP must, to enable the Minister to exercise his or her final
responsibility over the prosecuting authority, at the request
of the
Minister -
(i)
furnish
the Minister with information or a report with regard to any case,
matter or subject dealt with by the NDPP in the exercise
of his or
her powers, the carrying out of his or her duties and the performance
of his or her functions;
(ii)
provide
the Minister with reasons for any decision taken by a Director in the
exercise of his or her powers, the carrying out of
his or her duties
or the performance of his or her functions.
(Section
33(2))
[4]
It is apparent from these provisions that they have as their aim
the existence of
a
national prosecuting authority having prosecutorial independence with
a fit and proper person as its head who is able to ensure
that such
independence is lived out impartially, in good faith and without
fear, favour or prejudice (see:
Pikoli
v President and Others 2010(1) SA 400 (GNP) at 406F).
[5]
It follows that the appointment of a person who does not comply with
any one of the three requirements for appointment will
be
inconsistent with the Constitution and the NPA Act and, therefore,
invalid
(section
2 of the Constitution).
[6]
Although the parties were in agreement, correctly in my view, that
the requirements relating to a prospective candidate's legal
qualifications and his or her citizenship are objectively
determinable, they were not in agreement on the determination of such
a candidate's fitness or propriety for appointment.
[7]
On behalf of the Respondents it is contended that the question
whether a person is fit and proper has been entrusted to the
President to be determined in his or her subjective discretion whilst
it is the Applicant's contention, although it held the view
that the
appointment constitutes administrative action, that it is not
necessary to decide this issue as the Applicant's grounds
of review
can be accommodated by the principle of legality, being a doctrine
that covers the case where the decision-maker (a)
acts in excess of
the powers conferred upon him or her by the enabling legislation; (b)
acts
mala
fide
or
from improper or ulterior motive; (c) has failed to apply his or her
mind to the matter; (d) has abdicated his or her powers
to another:
(e) has acted arbitrarily or in a way which is, objectively viewed,
not rationally related to the purpose for which
the power was give.
[8]
I can refer in this regard to the judgment in
Pharmaceutical
Manufacturers Assoc ofSA: In re Ex p President of the RSA
[2000] ZACC 1
;
2000 (2) SA
674
(CC) at 707H, para [83]
in
which the Constitutional Court has approved the much quoted statement
from the judgment of Innes ACJ in
Shidiack
v Union Government (Minister of the Interior)
1912
AD
642
at
651
that
our Courts will interfere with the exercise of powers by public
officials if any such official had acted in bad faith or from
ulterior and improper motives or if he or she had not applied his or
her mind to the matter or exercised his discretion at all
or if he
had disregarded the express provisions of the statute. It has,
however, added (at
707H-708G,
para [83], [84], [85] and[86])
that
our Constitution also requires in addition that the exercise of
public power by the Executive and other functionaries should
be
rationally related to the purpose for which the power was given
otherwise they are arbitrary and inconsistent with such
constitutional
requirement.
Relevant
facts of this matter
[9]
The disputes in this matter are a sequel to the events leading up to,
and certain events following, the removal of Mr Simelane's
predecessor, Mr. Pikoli, from his position as NDPP.
[10]
Mr. Pikoli in his capacity as NDPP had during September 2007 taken
legal steps against the National Commissioner of Police,
Mr. Selebi,
to effect his arrest and the institution of criminal proceedings
against him.
[11]
The then President, Mr. Mbeki, in order to enable him to take an
informed decision as may be necessary regarding the National
Commissioner as his appointee, addressed a letter to the then
Minister of Justice, Ms. Mabandla, on 17 September 2007 to obtain,
by
virtue of the powers vested in her in terms of section 179(6) of the
Constitution, read with section 33 of the NPA Act, from
Mr. Pikoli
information regarding the intended arrest and prosecution of Mr.
Selebi.
[12]
The Minister, thereupon, on 18 September 2007 addressed a letter
(admittedly prepared by Mr. Simelane who was then the
Director-General
of Justice and Constitutional Development) to Mr.
Pikoli. In this letter the Minister requested Mr. Pikoli to provide
her with
all information on which he relied in taking legal steps
against Mr. Selebi. The letter then proceeds in the following terms:
"In
pursuing your intended course of action and any prosecution, the NPA
must do so in the public interest notwithstanding
a prima facie case.
Such exercise of discretion requires that all factors be taken into
account including the public interest.
Therefore, I must be satisfied
that indeed the public interest will be served should you go ahead
with your intended course of
action. Until I have satisfied myself
that sufficient information and evidence does exist for the arrest of
an preference of charges
against the National Commissioner of the
police service, you shall not pursue the route that you have taken
steps to pursue.".
[13]
Although Mr. Pikoli provided the information requested, his attitude
was, clearly within his powers, that the Minister could
not give him
any instructions not to proceed with the steps he had taken.
[14]
The Minister, thereupon, on 23 September 2007 requested him to
resign. He refused and was later informed by the President that
he
would suspend him if he did
not
resign. He again declined, whereupon, Mr. Mbeki then, purportedly in
terms of section
1
2(6)(a)(i)
of the NPA Act, suspended him and appointed Dr. F Ginwala to chair an
enquiry into Mr. Pikoli's fitness to hold office
as NDPP. Adv. Mpshe
was shortly thereafter appointed as acting NDPP.
[15]
Dr Ginwala invited the parties to make submissions on Mr. Pikoli's
fitness as NDPP. On 18 October 2007 the Government filed
submissions,
prepared by Mr. Simelane, with the Ginwala Enquiry. At the direction
of Dr. Ginwala after receipt of these submissions,
the Government and
Mr. Pikoli filed affidavits during January and February 2008. Because
of factual disputes which emerged from
these affidavits Dr. Ginwala
directed that oral evidence be adduced at the Enquiry. The evidence
of,
inter
alia,
Messrs
Simelane and Pikoli, was then heard in May and June 2008.
[16]
In her report delivered on 4 November 2008 Dr. Ginwala found that
most of the charges against Mr. Pikoli were unsubstantiated
and,
although she had some criticism against Mr. Pikoli on ancillary
matters, recommended his reinstatement.
[17]
She, however, expressed, in terms to which I will refer below, strong
criticism of Mr. Simelane's conduct and testimony.
[18]
On 8 December 2008, contrary to the recommendations of Dr. Ginwala,
President Motlanthe (who in the meantime succeeded President
Mbeki)
finally removed Mr. Pikoli from office, a decision which was
eventually confirmed by Parliament.
[19]
On 10 December 2008 the then Minister of Justice and Constitutional
Development, Mr. Surty, requested the Public Service Commission
to
investigate, evaluate and advise him on the criticisms expressed by
Dr Ginwala on Mr. Simelane.
[20]
Mr. Pikoli on 18 February 2009 launched, under Case No. 8550/09, an
application for the setting aside of his removal from office,
but an
interim order was rendered unnecessary by an undertaking from
President Motlanthe not to appoint a new NDPP without prior
notice to
Mr. Pikoli.
[21]
On 6 April 2009 the Public Service Commission furnished its report on
Mr. Simelane's conduct and recommended disciplinary action
against
Mr. Simelane.
[22]
Following the national elections and after Mr. Mpshe had withdrawn
all charges against Mr. Zuma, Mr. Zuma was on 9 May 2009
inaugurated
as President and Mr. Radebe was appointed as Minister of Justice and
Constitutional Development.
[23]
On 4 June 2009 Mr. Simelane's counsel made written submissions to the
Minister regarding the recommendations of the Public
Service
Commission requesting that no disciplinary steps be taken against him
and that counselling rather be considered.
[24]
On 15 July 2009 President Zuma's attorneys advised, true to the
earlier undertaking given by President Motlanthe to Mr. Pikoli.
Mr.
Pikoli's attorneys that the President intended to appoint a new NDPP,
whereupon, Mr. Pikoli renewed his application for interim
relief.
[25]
On 11 August 2009 Du Plessis J gave judgment in favour of Mr. Pikoli
and interdicted President Zuma from making a new appointment
pending
finalization of Mr. Pikoli's application challenging his removal from
office.
[26]
On 9 October2009 the Minister of Justice and Constitutional
Development wrote to the Public Service Commission asking for the
consideration of the submissions made on
4
June
2009 on behalf of Mr. Simelane's and hearing evidence from Mr.
Simelane. The Public Service Commission on 19 October 2009 declined
to do so.
[27]
On 11 October 2009 the President appointed Mr. Simelane (who at some
stage must have resigned as Director-General of the Department
of
Justice and Constitutional Development) as Deputy NDPP.
[28]
Mr. Pikoli's application challenging his removal from office was due
to be argued on Monday, 23 November 2009, but was on Saturday,
21
November 2009 settled in terms of which he withdrew his application
and he was paid R7,5 million.
[29]
On 23 November 2009 the Minister of Justice and Constitutional
Development announced that he rejected the Public Service
Commission's
recommendations and would not order the institution of
disciplinary proceedings against Mr. Simelane.
[30]
On 25 November 2009 Mr. Simelane was appointed as the new NDPP
with effect from 1 December 2009.
[31]
The DA, thereupon, on 10 December 2009 launched, as a matter or
urgency, this application challenging the validity of the President's
decision to appoint Mr. Simelane.
[32]
The validity of the President's decision is challenged by the DA
mainly on three grounds, namely -
(a)
that
objectively Mr. Simelane was not a fit and proper person and that his
appointment was, therefore,
ultra
vires
the
provisions of section 9(1 )(b) of the NPA Act
("the
fitness requirement'),,
(b)
that
the process followed by the President in arriving at his decision
that Mr. Simelane was a fit and proper person for appointment
was not
rationally related to the objectives sought to be achieved by the
Constitution and the NPA Act and that his decision was,
therefore,
unconstitutional, arbitrary and did not involve a proper application
of his mind; and
(c)
that
the appointment was made for an improper ulterior motive, namely, to
install an NDPP who was thought to be malleable to the
executive's
wishes.
The
DA's case
[33]
I can now, against the background of the aforegoing facts and
legal principles, realistically deal with the factual and
legal
averments on which the DA's case on the three grounds raised is
based.
[34]
Firstly
,
the fitness requirement
[35]
This requirement has, so it was contended by the DA, an internal
aspect and an external aspect which are to be viewed cumulatively.
[36]
The
internal
aspect
relates
to the following, namely -
(a)
the
evidence given by Mr. Simelane at the Ginwala Enquiry and the
comments rendered in the report of the Ginwala Commission;
(b)
the
recommendations of the Public Service Commission;
(c)
the
comments rendered in a judgment in the case of
Pretoria
Portlands Cement Co. Ltd and Another v Competition and Others 2003(2)
SA 385 (SCA);
(d)
the
approach followed by Mr. Simelane in his capacity as Competition
Commissioner in the so-called
"Glenister
matter";
(d)
a probe launched by the General Bar Council into Mr. Simelane's
fitness as an advocate;
(e)
the contents of his
curriculum
vitae
which
seems to be the only document made available to the President at the
time he was considering Mr. Simelane's appointment as
NDPP.
[37]
As far as Mr. Simelane's evidence at the Ginwala Enquiry is
concerned, the Applicant's case is based on six issues which arose
from his evidence.
[38]
In
the
first place
there
is the fact that the Government's submissions to the Ginwala Enquiry
(which were admittedly prepared by Mr. Simelane) did
not disclose the
events that occurred during the week immediately preceding Mr.
Pikoli's suspension on 23 September 2007 which
seems to lie at the
heart of President Mbeki's decision to suspend Mr. Pikoli. Instead it
sought to explain the breakdown in the
relationship between Mr.
Pikoli and the Minister referring to events that occurred over
several years.
[39]
In
the
second place
there
is the letter dated 17 September 2007 by President Mbeki to the then
Minister of Justice and Constitutional Development requesting
her to
obtain information from Mr. Pikoli on the intended arrest and
prosecution of Mr. Selebi. This letter was not disclosed by
Mr.
Simelane to Mr. Pikoli's attorneys, Deneys Reitz, who requested Mr.
Simelane on 22 October 2007 to provide them with all
"communications
and other documents relating to the investigation and prosecution of
Mr. Selebf
which
he or his Department may have sent or received from the President or
anybody in the Presidency at any time since 15 September
2007.
Notwithstanding the fact that Mr. Simelane was in possession of that
letter, he on 1 November 2007 informed Deneys Reitz
that there were
no documents as requested.
[40]
In
the
third place
there
is the letter admittedly prepared by Mr. Simelane dated 18 September
2007 of the Minister addressed to Mr. Pikoli in which
she requested
the information President Mbeki was seeking and in which he was in
addition instructed not to pu rsue the route he
has taken until she
was satisfied herself that sufficient information and evidence exist
for the arrest and prosecution of Mr.
Selebi.
[41
] In
the
fourth place
there
is Mr. Simelane's evidence at the Ginwala Enquiry on his function as
accounting officer
vis-a
vis
the
prosecutorial functions of the NDPP. On a question under
cross-examination whether he obtained a legal opinion on the issue
he
at first indicated that he had no such legal opinion. Later in his
cross-examination, so it is contended, he on having seen
the
cross-examiner (Mr. Wim Trengove) turning to a document, admitted
that he had indeed taken legal opinion on the issue. From
this legal
opinion it was apparent that he had been advised that he had no
authority at all over the exercise of powers, functions
and duties of
the national prosecuting authority.
[42]
In
the
fifth place
there
is the contention that Mr. Simelane accused Mr. Pikoli of dishonesty
in that he in relation to a dispute between them on their
respective
functions pretended to hold one view when in fact he knew better.
[43]
In
the
sixth place
there
are the comments rendered in the Ginwala report on the evidence given
by Mr. Simelane at the enquiry. My attention has been
drawn to the
following comments so rendered, namely:-
In
paragraph 15 of the report
(record
p. 269):
"In
general his conduct left much to be desired. His testimony was
contradictory and without basis in fact or in law. [Mr.
Simelane] was
responsible for preparing Government's orig inal submission to the
Enquiry in which the allegations against Adv Pikoli's
fitness to hold
office were first amplified. Several of the allegations levelled
against Adv Pikoli were shown to be baseless,
and [Mr. Simelane] was
forced to retract several allegations against Adv Pikoli during his
cross-examination.".
In
paragraph 154 of the report
(record
p. 314)
it
is found that Mr. Simelane
"deliberately
withheld'
the
opinions of his counsel from Mr. Pikoli and the Enquiry and that he
by
"persisting
in this conduct he could have misled the Enquiry'.
In
paragraph 155 of the report
(record
p. 314):
"It
is unacceptable that [Mr. Simelane] elected not to heed the legal
advice that he sought and obtained from senior counsel
relating to
the relationship between his office and the NPA. The legal advice
furnished to him clearly shows that his accounting
responsibilities
over the NPA were limited and did not extend to the areas of
responsibility that he claimed. Not only did he ignore
this legal
advice: he did not share it with Adv Pikoli and he also did not
disclose it to the Enquiry when it was his responsibility
to do so -
not even after he was requested. He attempted to suppress the
disclosure of the information that was of significance
to the work of
this Enquiry. He only acknowledged the existence of these legal
opinions when they were presented to him by Adv
Pikoli's legal
representatives during his cross-examination.".
In
paragraphs 86
(record
p. 295)
and
156
(record
p. 314)
of
the report Mr. Simelane s view of the legal dispute was rejected and
it was held that his view would have clouded the Minister's
judgment
which was, so it was held, contrary to the
"obligation
of a Director General to provide accurate, sound and unbiased
information and advice to the Minister".
In
paragraph 157
(record
p. 315)
of
the report:
"/
must also state that I have found the conduct of [Mr. Simelane]
highly irregular. His failure to include all the relevant material
at
his disposal in the original submission by Government was not
consonant with the responsibilities of a senior state official
furnishing information to an investigative enquiry established by the
President. He had a duty to place all relevant information
before the
Enquiry. His testimony before the Enquiry was also not particularly
helpful to me; his evidence was contradictory and
I found him to be
arrogant and condescending in his attitude towards Adv Pikoli.".
In
paragraph 158
(record
p. 315)
of
the report it is found that Mr. Simelane -
"...
did not heed the legal advice he had sought and received, and
continued to assert powers he did not have. His personal
view
informed the complaints against Adv Pikoli that formed part of
Government's submissions to the Enquiry. For that reason he
made
statements in his evidence in chiefthat he was forced to retract
under cross-examination.
".
In
paragraph 159
(record
p. 316)
of
the report it is noted that only in cross-examination' did Mr.
Simelane admit he wrote the Minister's letter of 18 September
2007
and, bearing in mind that the Minister in her affidavit submitted to
the Enquiry that she did not intend to instruct Adv Pikoli
not to
pursue his actions, the report continues as follows:
"Assuming
this is correct, the conduct of [Mr. Simelane] in drafting the
document in the manner it reads was reckless to say
the least. [Mr.
Simelane] should have been acutely aware of the constitutional
protection afforded to the NPA to conduct its work
without fear,
favour or prejudice. The contents of the letter were tantamount to
executive interference with the prosecutorial
independence of the
NPA, which is recognised as a serious offence in the Act".
In
paragraph 289
(record
p. 353)
of
the report it is found that nothing was presented to dissuade the
Enquiry from accepting the literal interpretation of the letter,
which
"was
an attempt to unlawfully interfere with Adv. Pikoli's prosecutorial
independence".
In
paragraph 320
(record
p.
361)
of
the report:
"/
must express my displeasure at the conduct of [Mr. Simelane] in the
preparation of Government's submissions and in his oral testimony
which I found in many respects to be inaccurate or without any basis
in fact and law. He was forced to concede during cross-examination
that the allegations he made against Adv Pikoli were without
foundation.".
[44]
In relation to the recommendation of the Public Service Commission,
the then Minister of Justice and Constitutional Development,
Mr.
Surty, having taken note of the Ginwala report, on 19 November 2007
referred the matter to the Public Service Commission to
"investigate,
evaluate and report'
to
him regarding
"the
conduct of Adv Menzi Simelane towards the Ginwala Enquiry, the
National Prosecuting Authority, the National Director of
Public
Prosecutions, as well as the previous Minister of Justice and
Constitutional Development, with specific reference to the
following:
(i)
The
alleged misrepresentations of facts and the alleged failure by Adv
Simelane to provide impartial and relevant advice to the
Ginwala
Enquiry:
(ii)
The
alleged withholding of documents under his care which were relevant
to the Ginwala Enquiry:
(Hi)
Any other material misrepresentations made by Adv Simelane to the
Ginwala Enquiry: and
(iv)
Whether or not any alleged conduct of Adv Simelane, as referred
to in the Ginwala Report, amounts to breach of any Act,
regulations,
code of conduct or any other prescript, that are applicable in
respect of his duties as Director-General."
The
Public Service Commission, having assessed Mr. Simelane's conduct as
reflected in the Ginwala Report and the record of the proceedings,
prepared and submitted during April 2008 a report to then Minister in
which it recommended that the Minister should' give
"immediate
attention"
to
the institution of disciplinary action against Mr. Simelane in terms
of the Disciplinary Code and Procedure for the Members of
Senior
Management Staff as his conduct could be in transgression of certain
codes in that -
(a)
he
failed to co-operate and provide relevant information to the Ginwala
Enquiry on the conduct of Mr. Simelane by not disclosing
the letter
of the former Minister dated 18 September 2007 addressed to Mr.
Pikoli and the legal advice obtained from counsel on
his functions as
accounting officer;
(b)
he
gave a false statement or evidence in the execution of his duties in
that he whilst under oath initially denied that he had taken
legal
advice on the interpretation of and the application of the powers
derived from the Public Finance Management Act and the
role of the
accounting officer
vis-a-vis
that
Act;
(c)
he
made a misrepresentation in his reply dated 1 November 2007 to Deneys
Reitz when he indicated that the Department is not in possession
of
any documents relating to the investigation of Mr. Pikoli whilst he
was aware of the letter dated 17 September 2007 received
from the
President.
[45]
As far as the criticism against Mr. Simelane in the case of
Pretoria
Portlands Cement Co. Ltd and Another v Competition Commission and
Others 2003(2) SA 385 (SCA)
is
concerned, the Applicant relies on criticism expressed in that
judgment on the manner in which the Competition Commission exercised
its powers during Mr. Simelane's tenure as a Competition
Commissioner.
This
case arose out of the execution of search warrants granted on an ex
parte
application
by the Competition Commission during August 2000.
Two
findings were made by the Supreme Court of Appeal which reflects
negatively on Mr. Simelane's conduct at the time of the execution
of
the warrants.
At
409D
the
following was said by Schutz JA:
"[62]
I can only conclude that the Commission was intent on advertising
itself, with no regard to the harm it might do to its
suspects. Not
all firms suspected of monopolistic practices are guilty of them and
it must be remembered that the innocent among
the suspects might be
harmed, or even put out of business by bad publicity, with
consequences not only for the shareholders but
also the workers, and
indeed the public at large.
[63]
The impression of publicity-seeking is reinforced by Simelane's
uninvited media interview held in PPC's own car park. There
is
another aspect of his conduct that deserves comment. In his replying
affidavit Gommersall stated that the book kept at the entrance
gate
reflected that at 12:40 Simelane had signed and stated in the 'Whom
visited' column, 'MD'. Gommersall added that it was simply
untrue for
Simelane to have said that he intended visiting the managing
director. And we know from one of the Commission's witnesses
that the
meeting in the carpark was pre-arranged. Now it is true that Simelane
had no right or duty to answer this allegation,
made in reply, but I
would have expected him to offer to do so if Gommersall's imputation
of dishonesty were false.".
[46]
As far as
the
Glenister matter
is
concerned, Mr. Glenister launched an application for the setting
aside the dissolution of the Scorpions. In an affidavit filed
in that
matter by Mr. Simelane on 29 April 2008 he stated that no decision
had been taken by the Cabinet to dissolve the Scorpions.
It, however,
appeared that the very next day the Cabinet approved the draft
legislation providing forthe dissolution of the Scorpions.
In
the Constitutional Court Mr. Simelane was rebuked by Justices O'Regan
and Yacoob for not complying with the Government's obligation
to
respond fully, frankly and openly.
[47]
As far as the probe launched by the General Bar Council into Mr.
Simelane's fitness as an advocate is concerned, it would appear
that
Mr. Simelane did not traverse these allegations in his answering
affidavit, but instead indicated in his answering affidavit
that
there had never been a complaint of unprofessional conduct against
him and, not referring to the remarks of the Judges in
the
Portland
Cement
and
Glenister
cases,
that his integrity and honesty have for the first time been called
into doubt in the Ginwala report.
[48]
As far as Mr. Simelane's
curriculum
vitae
is
concerned, it indicates -
(a)
that
he was 38 years old at the time of his appointment;
(b)
that
in his mid-twenties he practised for two years as an advocate;
(c)
that he held positions at the Competition Commission and in the
Department of Justice and Constitutional Development; and
(c)
that he served for a period of six weeks as one of four Deputy
National Directors of Public Prosecutions.
[49]
Furthermore, it is pointed out by the Applicant that the Department
of Justice and Constitutional Development received qualified
reports
from the Auditor-General in each year during the period that Mr.
Simelane was the Director-General (and accounting officer)
of that
Department.
[50]
As far as
the
external aspect
which
also according to the Applicant reflects on Mr. Simelane's fitness is
concerned, relates to the manner in which his appointment
was
perceived by society at large.
It
is pointed out by the Applicant that, against the background of the
circumstances under which Mr. Pikoli was removed from office
and the
role Mr. Simelane played in the findings of the Ginwala Enquiry,
dismay was, apart from the Applicant, expressed by the
ACDP, the ID,
COPE and the IFP. Other commentators who condemned the appointment
included Judith February of IDASA, Adv De Havilland
of the
Institution for Constitutional Rights, Jay Kruse of the Public
Service Accountability Monitor, Pierre de Vos, a constitutional
law
expert, and Archbishop Emeritus Desmond Tutu.
[51]
It is on these factual averments that it is contended that Mr.
Simelane is
objectively
not a fit and proper person for appointment.
[52]
This brings me to the
second
ground
on which Mr. Simelane's appointment is challenged.
[53]
Secondly
,
the process of appointment
[54]
As already indicated, it is, furthermore, the DA's contention that
the process of appointment was irrational resulting in an
arbitrary
and irrational decision to which the President failed to properly
apply his mind.
[55]
The contention seems to be that the means chosen by the President to
satisfy himself of Mr Simelane's fitness were not rationally
related
to the objects of section 179 of the Constitution and sections 9 and
1
0
of the NPA Act which resulted in an irrational and arbitrary
appointment to which the President did not properly apply his mind.
[56]
In this regard it is contended that the process chosen by the
President was wholly irrational because -
(a)
the
only written material he had before him was Mr. Simelane's CV which
was his own brief self-assessment;
(b)
he
did not take any steps to investigate and receive information about
Mr. Simelane's performance at the Competition Commission
and as
Director-
General
of Justice and Constitutional Development;
(c)
he
did not take steps to receive information as to the findings of the
Ginwala Enquiry against Mr. Simelane and the terms of those
findings;
(d)
he
did not insist on receiving the report of the Public Service
Commission;
(e)
he
did not take any steps to receive any motivational memoranda and
supporting documents from the Minister or from anybody else;
(f)
he
did not require the oral briefings with the Minister to be minuted;
(g)
he
prejudged the matter by deciding as early as 15 July 2009,
alternatively, 6 October 2009 that Mr Simelane was fit for
appointment
even though the recommendations of the Public Service
Commission were still pending;
(h)
he,
in general, followed such a haphazard process that he could have no
confidence that he was receiving reliable and complete information;
(i)
he
relied exclusively on informal oral briefings, thereby depriving
himself of the opportunity for proper reflection on relevant
information.
[57]
This brings me to the
third
on
which the appointment is challenged.
[58]
Thirdly
,
improper ulterior motive
[59]
In this regard it is contended, as I already indicated, that the
appointment was made for an improper ulterior motive, namely,
to
install an NDPP who was thought to be malleable to the executive's
wishes, particularly, in regard to criminal investigations
against
high-profile members of Government or criminal investigations which
could embarrass the Government.
[60]
This contention is based on the evidence already referred to from
which, so it was argued, an inference of ulterior motive
can be
drawn, such as the evidence -
(a)
that
Mr. Simelane was, objectively, not a fit and proper person in the
internal sense of fitness;
(b)
that
he was reasonably and predictably perceived in many quarters to be
unfit for appointment in the sense of the external aspect
of fitness;
(c)
that
an inadequate process was followed by the President in appointing Mr.
Simelane.
The
President's case
[61]
It would appear, as is apparent from the President's answering
affidavit, to be his case in response to the allegations made
on
behalf of the DA in its founding and supplementary papers -
(a)
that
he acknowledges, although he regarded it to be a matter falling
within his subjective discretion, the fact that the person
appointed
in the position of NDPP must with regard to his experience,
conscientiousness and integrity be a fit and proper person
who is
able to exercise his functions without fear, favour and prejudice and
who would in his view be able to co-ordinate harmoniously
with the
national executive, Parliament and other officials and personnel of
the NPA;
(b)
that
he has known Mr. Simelane
"for
a number of years"
as
a member of the Competition Commission and thereafter as
Director-General of the Department of Justice and Constitutional
Development;
(c)
that
when he considered appointing Mr. Simelane as Deputy National
Director of Public Prosecutions he had regard to Mr. Simelane's
curriculum
vitae
and
consulted the acting National Director of Public Prosecutions and the
Minister of Justice who highlighted the achievements of
Mr. Simelane
as the head of the Competition Commission and as Director-General
"because
they were in the public domain":
(d)
that
he discussed the issue of the Ginwala Report with the Minister who
conveyed to him that Mr. Simelane was in his view a person
of
integrity and competence;
(e)
that
he understood the Ginwala Enquiry as a fact-finding exercise
established to assist the President to take a decision on whether
Mr.
Pikoli was a fit and proper person to hold the office of NDPP;
(f)
that
he considered the Ginwala Enquiry's view on Mr. Simelane as a note of
precaution to the national executive, the NPA and Parliament
to
streamline the relationship between all of them and that the report
was not intended to have Mr. Simelane disqualified for future
appointments;
(g)
that
after the litigation instituted by Mr. Pikoli came to an end, he
again considered Mr. Simelane's
curriculum
vitae,
his
personal knowledge and the Minister's input and enquired from the
Minister whether there are other issues that he wished to
bring to
his attention;
(h)
that
he also discussed the issue of the Public Service Commission with the
Minister who confirmed that he decided not to institute
any
disciplinary proceedings against Mr. Simelane because the Public
Service Commission had not provided him an opportunity to
inform the
Commission on his views on the matter under investigation;
(i)
that
the Minister assured him that under the leadership of Mr. Simelane he
would continue to have a healthy professional relationship
with the
NPA founded on the provisions of the Constitution and the law;
G)
that
he accordingly decided that Mr. Simelane was fit an proper with due
regard to his experience, conscientiousness and integrity
to be
entrusted with the responsibilities of the office of the NDPP and
duly appointed him.
[62]
The President conceded that in considering Mr. Simelane's
appointment, he did not have regard to the transcripts of the Ginwala
Enquiry as he was of the view that he was not required to go behind
the Ginwala Report and interrogate the testimony led in the
Enquiry.
[63]
Having, however, now considered the relevant excerpts of the
transcript he remains, so it is stated in his affidavit, of the
firm
view that the appointment of Mr. Simelane is lawful and in accordance
with the Constitution and the provisions of the NPA
Act.
[64]
It is apparent that the President elected not to respond,
inter
alia,
to
the following allegations made by the DA in its founding papers -
(a)
the
comments rendered in a judgment in the case of
Pretoria
Portlands Cement Co. Ltd and Another v Competition and Others 2003(2)
SA 385 (SCA),
(b)
the
approach followed by Mr. Simelane in his capacity as Competition
Commissioner in the so-called
"Glenister
matter":
(c)
the
probe launched by the Genera] Bar Council into Mr. Simelane's fitness
as an advocate;
(d)
the
fact that the Auditor-General in each year during the period that Mr.
Simelane was the Director-General (and accounting officer)
of that
Department submitted qualified reports on the administration of the
Department;
(e)
the
dismay expressed, albeit after the fact, by various prominent members
of the community on Mr. Simelane's appointment;
(f)
the
criticism on the process he followed in determining Mr. Simelane's
fitness for appointment as NDPP.
The
Minister's case
[65]
The Minister in turn acknowledges in his affidavit the independence
of the prosecuting authority which, so it is conceded,
must be
preserved to enable the NDPP to discharge his duties without fear,
favour or prejudice.
[66]
In his affidavit he, furthermore, confirms -
(a)
that, as stated in his media release,
Annexure
JTR
1,
he
is satisfied that Mr Simelane is a fit and proper person to provide
leadership at the NPA, that he as Minister will have a healthy
relationship with the NPA founded on the Constitution and the law and
that he has no doubt that Mr. Simelane will ensure that the
NPA will
discharge its prosecutorial mandate and independence in accordance
with the Constitution;
(b)
that
he did discuss the report of the Public Service Commission with the
President and
"explained
in detail'
the
reason why he concluded that the process adopted by the PSC had been
flawed because its refusal to consider Mr. Simelane's
representations;
(c)
that
in his view the Ginwala Enquiry was a
"fact
finding exercise"
to
assist the President to take a decision as to whether Mr. Pikoli was
a fit and proper person and not a judicial commission of
enquiry and
was aimed at enabling
"the
relevant parties in the national executive, the national prosecuting
authority and Parliament to sort out their relationships
... and not
to require that disciplinary steps be taken against Simelane or any
other part/;
(d)
that
the President indicated to him that although he had firm views on
appointing Mr. Simelane he wished to obtain an opinion from
him;
(e)
that
he, having had knowledge of Mr. Simelane's qualities, diligence and
tireless dedication in his capacity as Commissioner of
the
Competition Commission and as Director-General of his Department, he
did not hesitate in briefing the President fully on Mr.
Simelane's
qualities and that he was indeed capable of executing the functions
attendant to the position of NDPP;
(f)
that
the President specifically sought his view on the findings and
recommendations of the Ginwala Enquiry;
(g)
that
he, having familiarized himself with the criticisms expressed in the
Ginwala Report and the investigative process followed
by his
predecessor, Mr. Surty, to have referred the matter to the PSC, was
able to have a detailed discussion with the President
on these
issues.
[67]
The Minister elected not to comment in any particular detail on his
decision to reject the recommendations of the Public Service
Commission.
[68]
It would appear, as I have already indicated, that the Minister on 23
November 2009, ie., some 19 months after the report of
the PSC was
submitted and two days after the dispute relating to Mr. Pikoli's
removal from office was settled, being two days before
Mr. Simelane's
appointment as NDPP, rejected these recommendations largely on his
criticism that the PSC did not give Mr. Simelane
a hearing before
reaching its findings and had not amended its findings in the light
of a statement provided to it on Mr. Simelane's
behalf.
(I
pause here to add that this
"statement'
contains
representations made on 4 June 2009 by Mr. Simelane's legal
representative to the current Minister in which the findings
of the
Ginwala Enquiry were analysed and commented on and the Minister was
requested not to proceed with disciplinary action against
Mr.
Simelane or, alternatively, to direct that an appropriate person
counsel him on the issues raised in the Ginwala report. The
statement
contains no indication that the PSC should have given Mr. Simelane a
hearing before making its recommendations. On what
basis the Minister
took the view that the PSC should have done that, instead of himself
doing it, is unclear)
[69]
This brings me to the contents of Mr. Simelane's answering
affidavit.
Mr.
Simelane's contentions raised in his answering affidavit in relation
to the attack on his fitness to be appointed as NDPP
[70]
As is apparent from Mr. Simelane's affidavit, he was, despite that no
relief is sought against him, advised to depose to an
affidavit so as
to set out facts which only he can put before court regarding the
Applicant's allegations that he gave incorrect,
misleading and
untruthful evidence before the Ginwala Enquiry.
[71
] Of some significance is his allegation that throughout since his
admission as an advocate there has never been a complaint
of
unprofessional conduct against him or that he had ceased to be a fit
and proper person to remain on the roll of advocates.
This
contention had given rise to the criticism raised by the Applicant in
its replying affidavits to which I have already referred
to.
[72]
It, furthermore, appears from his affidavit -
(a)
that he, although he concedes having in some instances made
incorrect statements in his evidence before the Ginwala Enquiry,
denies that he made those statements deliberately knowing their
incorrectness and never intended to mislead:
(b)
that
what he intended to convey at the Ginwala Enquiry is that the NDPP or
the NPA is guaranteed prosecutorial independence, but
not
institutional independence because it is part of the Department of
Justice and Constitutional Development of which he as
Director-General
was for purposes of the Public Finance Management
Act the accounting officer;
(c)
that
the criticism by the courts in the matters referred to by the
Applicant was not directed at his integrity.
[73]
In his answering affidavit Mr Simelane claimed, in his effort to deal
with the manner in which he performed his functions as
Commissioner
of the Competition Commission, that
"an
OECD peer review"
had
concluded that the SA competition authorities were compliant with
international best practice.
However,
the
"OECD
report'
produced
by way of the Applicant's replying affidavit does not contain such a
conclusion.
[74]
It is, furthermore, categorically stated by him in his affidavit that
he, having grown up during the previous dispensation
during which he
gained a consciousness of the gross abuse of political power, will
never sacrifice the independence of the office
of the NDPP as that
will, according to him be tantamount to acting against Government's
commitment to
"respect,
protect, promote and fulfil the rights in the Bill of Rights"
and
that he never, nor will he ever seek to limit anybody's rights except
as provided for in the Constitution or relevant legislation.
[75]
I may add that an NDPP is in terms of section 32 of the NPA Act
required to take an oath or to solemnly affirm the he will
in that
capacity
"uphold
and protect the Constitution and the fundamental rights entrenched
therein and enforce the Law of the Republic without
fear, favour or
prejudice and, as the circumstances of any particular case may
require, in accordance with the Constitution and
the Law".
Evaluation
of evidence and submissions made for and against relief claimed
[76]
The averments made by the DA, after an extensive investigation and
consideration of Mr. Simelane's background, indeed constitute
a
formidable onslaught on Mr Simelane's fitness and propriety for
appointment as NDPP and, therefore, also on the validity of the
President's decision.
[77]
The question, however, Is whether I can on the papers hold, on a
balance of probabilities, that the President's decision to
appoint
Mr. Simelane as NDPP is on any of the three grounds raised
inconsistent, either individually or cumulatively, with section
179
of the Constitution, read with sections 9 and 10 of the NPA Act.
[78]
In order to come to such a conclusion on the papers is an
extremely difficult task.
[79]
My task is as a point of departure difficult because of the fact that
no process is prescribed which the President is required
to follow in
considering an appropriate appointment to the position of NDPP. One
cannot help to wonder, regard being had, particularly,
to the fact
that the position of NDPP is an important functionary in the
administration of justice, why the Legislature has in
its wisdom
elected not to have prescribed an open and transparent process to be
followed, like, for instance, as in the case of
Judges, for
appointments of this nature.
[80]
Despite the absence of an open and transparent process and, regard
being had to all the issues raised by the DA which could
or, perhaps,
have been considered, it would appear that relative superficial
consideration had been given to the election of a
suitable candidate
for appointment in the position of NDPP. There is no indication that
the President has given any attention to
any other possible
candidates. On the contrary all indications are that the President
had at some stage, as it was, perhaps, his
right to do, favoured Mr.
Simelane, and no one else, for the position of NDPP.
[81]
It, however, does not mean that the President, in the exercise of his
powers, did not take the decision to appoint Mr. Simelane
in good
faith or that his decision was not, as held in,
inter
alia,
the
Pharmaceutical
case, supra, 708E,
"rationally
related to the purpose for which the power was given".
[82]
The purpose of the power conferred on the President in terms of
section 179(1) of the Constitution, read with sections 9
and 10 of
the NPA Act, is to give effect to the constitutional imperative of a
national prosecuting authority that will execute
its functions
independently and without any interference, politically or otherwise.
[83]
It accordingly follows that if it can be said that the President
appointed a person, as is contended by the DA, who
"displayed
a fundamental lack of appreciation for prosecutorial independence; or
worse still, while being fully aware of what
prosecutorial
independence entailed, he was willing to assist the (Minister of
Justice) to override
if,
the
decision is not rationally related to the purpose for which the power
to appoint an NDPP is conferred on the President.
[84]
This brings me to a consideration of the grounds on which this
application is based.
The
fitness requirement
[85]
A fit and proper person for appointment is in my view, regard being
had to the purpose of the power conferred upon the President,
is
obviously a sufficiently experienced one that will, apart from the
other prescribed or required requirements, be able to conscientiously
maintain, with integrity and without fear, favour and prejudice, free
from any interference by any person and in the public interest,
the
independence of the prosecuting authority.
[86]
As is apparent from the papers, it is almost all of these
qualities and characteristics of Mr. Simelane that are being
questioned in this application.
[87]
Of particular significance is his view on the prosecutorial
independence of the NPA in general and the NDPP in particular as
is
embodied in the letter dated 18 September 2007 of which he was
admittedly the author. The contents of this letter, in so far
as it
purported to have instructed Mr Pikoli not to pursue any steps
against Mr. Selebi until such time as the Minister is satisfied
that
sufficient information and evidence exist for such action, seem no
doubt to be the spark that ignited the whole inferno that
followed
and which had eventually given rise to this application and, perhaps,
the suspension of Mr Pikoli. The parties were all
in agreement that
the Minister had no right to interfere to that extent in the
performance by the NDPP of his functions. Mr. Pikoli
did, as he was
bound to do, provided the Minister with all the information she
called for, but refused to comply with her instruction
not to proceed
with the legal steps he was at the time in the process of taking.
There is much to say in this regard for the comments
rendered in the
Ginwala report that the contents of the letter were
"tantamount
to executive interference with the prosecutorial independence of the
NPA, which is recognised as a serious offence
in the Act'
and
that Mr. Simelane's view have in all probability clouded the
Minister's judgment which was, so it was held, contrary to the
"obligation
of a Director General to provide accurate, sound and unbiased
information and advice to the Minister".
Mr.
Simelane, like the Minister, denies that it was the intention to
interfere in the performance of the duties of the NDPP. According
to
him the letter was intended to convey a message that the arrest,
search and seizure should not go ahead immediately until the
Minister
was in possession of sufficient information and evidence so as to be
able to advise President Mbeki on how to handle the
situation.
The
question immediately arises, if that was the position, why was Mr.
Pikoli in the context of his actions against Mr. Selebi asked
to
resign at first by the Minister and eventually by Mr. Mbeki.
Although
the criticism levelled at him is this regard may be justified, I find
myself unable' to hold that he is not a fit and proper
person to hold
the ;position of NDPP.
It
in fact now appears that he indeed believes in the independence of
the office of the NDPP and must have on his appointment taken
an oath
that he will in that capacity
"uphold
and protect the Constitution and the fundamental rights entrenched
therein and enforce the Law of the Republic without
fear, favour or
prejudice and, as the circumstances of any particular case may
require, in accordance with the Constitution and
the Law".
[88]
His integrity and honesty are being challenged because of the
non-disclosure of certain information and documents to the Enquiry
and in one instance to Mr. Pikoli's attorneys. This evoked negative
comments in the Ginwala report.
Although
the criticism levelled at Mr. Simelane in this regard may to a
certain extent be justified, I also find myself here unable,
even if
it is considered in context with the aforegoing criticism, to hold
him to be a person that is unfit to hold the position
of NDPP.
[89]
As far as the recommendations of the PSC are concerned, I fail to
see, except to note that the PSC was of the view that Mr.
Simelane's
conduct justifies disciplinary proceedings, how any inference, other
than the one that I have drawn from the Ginwala
Report, can be drawn
from those recommendations. As a matter of fact Mr. Simelane cannot
be blamed for the fact that the Minister
refused to accept those
recommendations.
[90]
The criticism in judgment in the
Pretoria
Portlands Cement matter, supra,
in
the manner in which Mr. Simelane conducted himself in the actions of
the Competition Commission shows, perhaps, an over-eagerness
on his
part, albeit an ill-considered one, to draw attention to the
Commission's role and function, but I fail to see how his actions
in
this regard disqualified him as a fit and proper person to hold the
position of NDPP.
[91]
As far as the criticism against him in the
Glenister
matter
is
concerned, it is not clear to me whether Mr. Simelane knew that the
issue of the Scorpions would be considered by the Cabinet
the day
after he deposed to his affidavit or whether he was free to
anticipate decisions to be taken by Cabinet.
[92]
The fact that a probe has been or was about to be launched by the GCB
or the Bar Council was not relevant at the time of his
appointment.
It does not appear that the GCB or Bar Council has at any stage
evaluated any complaints against him or has formulated
any charges
against him and, I doubt whether it can be said that he was facing
any complaints of unprofessional conduct.
The
process followed by the President in taking the decision to appoint
Mr. Simelane
[93]
As I have already indicated, no competitive selection process is
prescribed by either the Constitution or the NPA Act as a
prerequisite for a lawful appointment of an NDPP.
[94]
The President has, as head of the executive authority, made the
appointment, after, as he was required to do, having consulted
the
Minister of Justice and Constitutional Development.
[95]
In doing so, he, albeit, as I have already indicated somewhat
superficially, made enquiries on the occurrences at the Ginwala
Enquiry and on the recommendations of the PSC and took into
consideration the facts set out in his
curriculum
vitae
from
which it appears that he practised for two years as an advocate, that
he was a commissioner of the Competition Commission and
the
Director-General of the Department of Justice and Constitutional
Development.
[96]
In the absence of any prescribed process, I am unable to hold that
the process followed was irrational as the President's aim
was, as is
apparent from his answering affidavit, to determine whether Mr.
Simelane was a fit and proper person for appointment
as envisaged in
the Constitution and the NPA Act.
The
alleged improper or ulterior motive for appointing Mr Simelane
[97]
This ground of review is dependent on, and linked with, the first two
grounds of review which, if held to be correct, may lead
to an
inference that the appointment of Mr. Simelane effected to secure as
NDPP a person who would be susceptible to influence
by the Executive
in regard to prosecutorial decisions, particularly, in regard to
criminal investigations against high-profile
members of Government or
criminal investigations which could embarrass the Government.
[98]
In view of the conclusions I have reached in the first two grounds of
review raised, there is no basis to draw any such inference.
Conclusion
[99]
I am accordingly unpersuaded that it has been shown on the
probabilities that Mr. Simelane is not a fit and proper person for
appointment.
[100]
I am not persuaded that, if regard is had to all the averments made
in the papers, that he is not a controversial person and
one with an
unblemished background or that he is one of the most experienced
persons who could have been taken into consideration
for appointment.
[101]
That is, however, not the test.
[102]
At the time the replying affidavits were filed on 29 June 2010 Mr.
Simelane was already in office for a period of seven months.
The
papers contain no allegations on the manner in which Mr. Simelane
conducted his functions as NDPP and which reflects negatively
on his
fitness as NDPP.
[103]
As I have already indicated, he has stated explicitly that he
believes in the independence of the office of the NDPP and must
have
taken an oath to uphold and protect the Constitution and the
fundamental rights entrenched therein.
[104]
Whether he will adhere to his belief and be true to the oath he has
taken, only time will tell.
[105]
Should he fail to do so the General Bar Council is authorized to take
him to task and should it appear that he in some way
conducted him in
a manner not deserving to remain on the roll of advocates, and to
bring an application for him to be removed from
the roll of advocates
which will, if he is so removed, immediately disqualify him to remain
in office as NDPP.
[106]
This brings me to the question of costs.
Costs
[107]
As far as costs are concerned, it was submitted on behalf of the DA,
relying on the judgment of the Constitutional Court in
Biowatch
Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC) at
245C-247E, para [21] to [25]
in
which the Constitutional Court, as in previous judgements in that
Court, again confirmed the general rule that in constitutional
litigation an unsuccessful litigant in proceedings against the State
ought not to be ordered to pay costs.
[108]
This rule is based on the rationale that an award of costs might have
a chilling effect on litigants who might wish to vindicate
their
constitutional rights. An exception is, however, acknowledged to this
general rule where, for instance, litigation is frivolous
or
vexatious or in any other way manifestly inappropriate.
[109]
In this matter we are not here concerned with an individual litigant
who sought to vindicate his or her rights, but with a
political party
which has obviously raised a constitutional issue, namely, the
constitutional validity of executive action.
[110]
I can see no reason why this rule should not also find application in
the case where a political party seeks to challenge
the validity of
actions which in its view is inconsistent with the provisions of the
constitutional and democratic dispensation
envisaged in the
Constitution. To deny a political party the benefit of this rule
might have a negative effect on it to in so far
as it reasonably
deems it necessary ensure the promotion and advancement of
constitutional justice.
[111]
It has been argued on behalf of the Respondents that this is a case
where a political party has sought to advance its political
aspirations through litigation.
[112]
Even though a political party, particularly, one in opposition to
government might, perhaps, benefit politically by successfully
litigating against government on a
constitutional
issue, it does not in my opinion detract from a case where it seeks
to. remedy a constitutional injustice in the
public interest.
[113]
In this matter the DA launched this application clearly on its
perception of a wrong appointment that may have a serious impact
on
the administration of justice, particularly, if such appointment was
made for an improper or ulterior motive, namely, to install
an NDPP
who was thought to be malleable to the executive's wishes.
[114]
I have no reason to believe that the DA launched these proceedings
for frivolous or vexatious reasons. It is undoubtedly the
purpose of
the Constitution to have, as head of the NPA, a person of the utmost
integrity and independence and of sufficient experience
and
conscientiousness to lead the NPA in the fearless, fair and efficient
execution of the prosecutorial mandate to instill confidence
in the
NPA.
[115]
I
have
no doubt that, in view of the background facts on which its
application was based, the DA acted fairly and reasonably to have
been concerned, as a number of other prominent persons in our
community, on the person of Mr. Simelane and the manner in which
the
appointment had been effected.
For
these reasons
I
make
the following orders:-
1.
The
Applicant's application is dismissed.
2.
No
order is made as to costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT
ADV
O ROGERS SC
ADV
A KATZ SC
ADV
D BORGSTROM
ADV
N MAYOSI
On
the instructions of:
MERVYN
SMITH
Tyger
Valley Office Park
Cnr
Willie van Schoor & Old Oak Roads
BELLVILLE
Ref:
Mr Mervyn Smith / Ms Samantha Solomons
Tel
: (021) 918 9000
c/
o EDELSTEIN-BOSMAN INC
222
Lange Street
New
Muckleneuk
PRETORIA
Ref:
A Jogi/LT/DM1004 Ms Anisha Jogi
Tel:
(012) 452 8900
ON
BEHALF OF THE FIRST RESPONDENT
ADV
N A CASSIM SC
ADVVNOTSHESC
ADV M SELLO
On
the instructions of:
STATE
ATTORNEY
167
Andries Street
8
th
Floor
Manaka
Heights
PRETORIA
Ref:
8018/2009/Z65/jb
G
P Seleka
(012)309
1545
ON
BEHALF OF THE SECOND RESPONDENT
ADV
MTK
MOERANE SC
ADVLGCABASHE
On
the instructions of:
STATE
ATTORNEY
167
Andries Street
8
,h
Floor
Manaka
Heights
PRETORIA
Ref:
8018/2009/Z65/jb
G
P Seleka
(012)
309 1545
ON
BEHALF OF THE FOURTH RESPONDENT
ADV
D UNTERHALTER SC
ADV
G MALINDI
On
the instructions of:
STATE
ATTORNEY
167
Andries Street
8
th
Floor
Manaka
Heights
PRETORIA
Ref:
8018/2009/Z65/jb
G
P Seleka
(012)
309 1545
DATE
OF HEARING
13,
14 and 15 September 2010
JUDGMENT
DELIVERED ON
10
November 2010